Ancillary Copyright 2.0: The European Commission is preparing a frontal attack on the hyperlink

The European Commission is preparing a frontal attack on the hyperlink, the basic building block of the Internet as we know it. This is based on an absurd idea that just won’t die: Making search engines and news portals pay media companies for promoting their freely accessible articles.

The newest attempt for ancillary copyright is the most dangerous attack on the hyperlink yetTweet this!

Earlier attempts at establishing this principle resulted in Germany’s and Spain’s ancillary copyright laws for press publishers. These attempts backfired – with tremendous collateral damage. In the European Parliament I was able to defeat repeated attempts by EPP MEPs to sneak into my copyright report text passages asking for an extension of these laws to the European level. But this newest attempt is the most dangerous yet.

According to a draft communication on copyright reform leaked yesterday (via IPKat), the Commission is considering putting the simple act of linking to content under copyright protection. This idea flies in the face of both existing interpretation and spirit of the law as well as common sense. Each weblink would become a legal landmine and would allow press publishers to hold every single actor on the Internet liable.

Ancillary Copyright Law reloaded: A new path towards the old goal

In the draft at hand, the Commission bemoans a lack of clarity about which actions on the Internet need a permission and which ones do not: in legal terms, they put forward the question when something is an ‘act of communication to the public’.

This is a reference to a ruling of the European Court of Justice in the Svensson case. While on one hand the judges established that the simple act of linking to publicly available content is no copyright infringement, because it does not reach a new public, a few questions were left open by this ruling, however: For example when exactly content can be seen as accessible by the public and how e.g. links surpassing paywalls are to be treated.

Oettinger’s
Problem with ancillary copyright law: it is not absurd enough Tweet this!

The key point is that the Commission frames ancillary copyright laws for press publishers as an attempt by a few member states to solve this problem legally. Instead of criticizing the substance of these laws they only bemoan the possible ‘fragmentation’ of European law by these different implementations. A coherent European answer to the problem behind all this is a necessity. The reform of the exclusive rights on an EU-level is apparently another attempt to fulfil the goals also pursued through the introduction of ancillary copyright law.

However, the depiction of this goal by the Commission is plainly wrong: Ancillary copyright laws do not answer the questions poised by the European Court of Justice. It is rather an attempt to cross-finance struggling publishing houses by asking thriving Internet companies such as Google to pay up for linking to publicly available articles – to give price tags to exactly the same act of linking that has been clearly pronounced non-infringing by the European Court of Justice.

The Commission seems to want to reach the same by defining exclusive rights further, so the ‘clarity’ it seeks can only mean: sheer linking to content protected by copyright shall be seen as providing access to them, and require therefore explicit permission. This plan is a departure from the basic principle behind the Svensson ruling, which permitted free linking on the Internet, without the need for active examination of whom the linked material belongs to.

The most dangerous incarnation of the ancillary copyright zombies

Digital commissioner Günther Oettinger (CDU – EPP), afiirmed dozens of times over the last months that he is considering the introduction of an ‘instrument’ on the European level to compensate the publishing houses’ sinking income caused by lower sales and less income through advertisement:

Even Martin Schulz (SPD – S&D), President of the European Parliament, struck a similair tone this week at the ‘Publishers’ Summit’ when he confirmed that ‘we need to clarify the relation between press publishers and digital platforms in the matter of copyright.’

The publishers are clearly wielding so much influence through lobbying that there is nothing that can stop big-party politicians from trying to misapply copyright law in order to support obsolete business models:

Not the complete failure of pushed-through legislation like the one in Germany – where not only the hoped-for increase in revenue stayed away, but where the fast and meek introduction of a free licence for google, a grand backpedalling by the publishing houses, is a possible violation of German law.

Not the collateral damage done to Spain’s IT-economy, where the ancillary copyright law forbid granting free licences, making the collection of newspaper articles by non-profit organizations illegal even when publishers would like to support it; and forcing Google to completely shut off it’s news service in Spain due to lack of profitability.

Not the repeated distinct rejection of introducing such plans into the report on the copyright directive by the European Parliament.

The prospective ‘instrument’ – Needing permission to link to something – would be the bluntest tool yet employed for a completely mistaken cause that is being pushed through against all odds. This would have even more dramatic effects than everything seen so far regarding ancillary copyright laws in Germany and Spain.

The damage would be humongous

Protecting linking by copyright law would change the Internet as we know it today beyond all recognition. Tweet this!

Posting, sharing and sending links is a trivial every-day activity. It is impossible for both users and internet platforms to examine the legal status of every link. Content can change constantly online, so these examinations would actually have to take place constantly. What is more, every link leads to texts or pictures copyrighted by someone – no matter whether they know it or not; no matter whether they want to profit from this or not.

Subsequently there will be legal uncertainty, confusion, and waves of dissuasion carrying legal fees for everybody – it would sever the Internet’s neurons in order to promote the interests of the few. We can not let that happen!

Repell this advance right now

The leaked text is not a law proposal, but just a summary of the Commission’s plans for next year. The plan is supposed to go public on the 9th of December. Affecting change in the now-known versions is nigh impossibly until then. But sometimes controversial proposals are leaked to test them – if there is no protest, the plan can be unworriedly pursued.

It is hence even more important to become active now! Tell the Commission that pursuing the introduction of ancillary copyright law means barking up the wrong tree – no matter whether it is introduced as a privilege, or a restriciton to free linking is enacted. Do not allow the vested interests of the publishers’ lobby to destroy free communication on the Internet! Remind your representatives of them having rejected such approaches to introduce ancillary copyright laws with clear majorities in the past. Many representatives are worried about the competitiveness of European companies – explain to them that liability for linking brings uncalculable risks with it for the European IT-industry and threatens to nip innovation in the bud! Encourage them to make clear once and for all:Stop breaking the Internet!

To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.

My name is Julia, I'm the Pirate in the European Parliament.

46 comments

Are there ANY evidence that robots.txt, nofollow and noindex meta tags are not being honored? Publishers control their content if they choose to, but will freak out when they are dropped from the search index.

It strikes me that when a publisher wishes to protect their content, they can use other mechanisms than tying ordinary web addresses to the pages on their site: for example, they may give that content an unsharable address, by individualizing the address for the visitor.

In general they are in complete control to impose many conditions before making the content available to a visitor who has followed a link, including requiring payment. See status codes 401 (Unauthorized), 402 (Payment Required), 403 (Forbidden) , 404 (Not Found) at http://www.w3.org/Protocols/rfc2616/rfc2616-sec10.html)

So there may not be a need for a legal solution, technical solutions are available.

It is not as if the web is a place where you put your content and then you have lost it, or lost control of it. It is difficult to control when visitors copy-and-paste the content, but it is not difficult to control what your own infrastructure makes available.

I think it would have helped if there were a link to write a letter to one of the decision makers. I have no idea how to become active now. Remember when Jon Oliver linked everyone to the US Congress page where they could file a letter to Congress?

This was my thought, but I doubt it would be as simple as that. A publishing business could publish a waiver to encourage everyone to link to their site, but such permission would not be granted for links to other sites that infringed their copyright. The objective would seem to be to divert people to the “good” guys and away from others. To enact this would also presumably suit governments that control media outlets.

Why do we need laws to protect people that can’t program their web servers? When your server is presented with an HTTP request, that request contains a referrer header. If you don’t like where that request is coming from, simply redirect it to your sign up page. If you are worried about fake referrals there are ways to detect that too.

Just because someone makes a request for a page from a web server it does not mean your web server has to give it to them. It is the responsibility of the owner of the page to decide whether or not to provide the page requested.

So if you don’t like Google serving up links to your news stories – don’t give the articles back to those clicks coming from Google. Choosing to give those articles back is 100% under the publisher’s control and there is absolutely no need for legislation.

Exactly what has to happen. Please support this legislation. This will remove all restricted commercial content from (European) Internet, and bring commercial exploitation of Internet back to where it was few decades ago. It would only break the commercial, entertainment and protected content related Internet, not so much the free/open part of it.

It would be nice to ensure they could not reverse this law easily; it is also important that they would not realize the effects until after the law goes into force.

Best idea they have come up with so far. They should extend it to US as well.

It could be improved only by going a step further – adding a clause that it would not be allowed at all to publish protected material on any Internet-connected system, and any content they choose to make accessible on the Internet would automatically become public material.

I am looking forward to this circus show.

I see one of the outcomes a possibility of GPL-style link licensing, prohibiting any closed works if linked to free/open content. The possibilities to fight them with their own weapon would be so nice. Absolutely beautiful.

The Commission is committed to ‘Think Small First’, assessing and reporting on the impact of all new policy on small businesses before it is introduced. Has Oettinger done this?
The ‘curation’ of information and ideas, including copyrighted content, is the currency of the knowledge economy. Liability for linking would seriously constrain the access of European SMEs to the web as a channel for marketing and collaboration, hurting them far more than it hurts Google. In ALL INDUSTRIES, such a rule would benefit the largest global players at the expense of small, local businesses.
Mr Oettinger, did you Think Small First?

What about search engines? Ideas like these could mean the end of real-time search engines like Google… if they need permission in advance for every single link that the search engine publishes, and if they need to double-check every link that the search engine publishes for copyrighted material, then all internet search engine companies can very well close their doors.
Which also means the internet will quickly become a lot less accessible, as these search engines are the glue that holds everything together.

The European parliament apparently does not know how the internet works, it’s called the web because it’s all connected through HYPERLINKS. Taxing hyperlinks==taxing the internet, this will affect everyone and not in a good way.

That’s the VERY reason they’re doing this Jelle! They know only too well how the internet works – they just want to raise taxes from something that has so far proved untaxable and is just too big a tax bucket to be left alone!

Thanks for the reply, but I’m still a little confused. It’s clear to me that Svensson is being referenced, but I see no reason to presume they’re lying when they say they intend to look at and harmonise that area of the law in order to make it fair to everyone. Precisely the opposite of attacking the hyperlink could be what will result.

But then why would they list the ancillary copyright laws as legislation that has attempted to fix “the problem”, but just not on the right level? These laws have limited and discouraged linking. It follows that the Commissions’ plans would be along those lines.

That new internet is already there and is called the Dark Net or Deep Web. It’s not regulated and therefore quite some less legal stuff is going on there. But like in the rest of the world there are also great websites there made by people that seem to have more brain capacity then the entire EU parliament together. It’s quite sad to see tax-payers money being used for totally nonsense rules and regulations. What’s next? A limit on how full a baby can fill his/her diaper?

I think if you don’t like how the internet works get the fuck of it.
Seriously we don’t need your content, there are a lot of different ways to distribute your content outside the internet leave us alone, we like things as they are.

It’s not mandatory to have data published on the internet. It’s not mandatory for you to publish data in “Hypertext” format accessible by HTTP (The Hypertext Transfer Protocol (HTTP) is an application protocol for distributed, collaborative, hypermedia information systems. HTTP is the foundation of data communication for the World Wide Web.) source: https://en.wikipedia.org/wiki/Hypertext_Transfer_Protocol
Seriously if you don’t want to be apart of a distributed, collaborative, hypermedia information system nobody is forcing you.

Good to have a true pirate in the European Parliament, to at least compensate a little all those corrupt financial pirates who hide their loot on tax havens (treasure islands) and are protected by bank secrecy.
Good luck to you! :)

This is of course a large part of the ordinary people’s problem. Unless we have said pirates to feed us this information, we don’t get to hear about it! and then laws get passed before we have a chance to even stand up and say no! On top of this, they get created by unelected officials who are self elected by a closed group of elitists and then passed by elected members who are mostly ‘yes men’ or there for the money and croissants.

The greed of publishing vested interests should, rather than try and stifle competing information, make their own offering more compelling. The publishing houses appear to be going down the same route as the software industry in which it’s more profitable to buy up patent portfolios than to actually innovate or create new software and content. The EU of course is a cesspool of corruption and idiocy, fuelled in its quest for world domination, by the never ending supply of former marxists and ex communists with little or no understanding of the real world or the world of commerce. If these new directives are forced on us, it will most likely have the opposite effect. I’d hazard a guess that a good proportion of the traffic coming on to the web sites of the whiners is actually referred from others. If those web sites are happy to rely purely on people randomly coming across them or visiting them becuase they’ve previously bookmarked them then so be it but I can’t see them staying in business for long if that’s the case.

So, what the EU is telling us is Media houses and Publishers should have the right to use Google to freely advertise their presence and attract customers – and then get PAID by google for helping them to do this? Because that’s what this bill would amount to. I suspect this whole issue goes far deeper. I sounds like member states are looking for a legally binding way to stop documents created by their state departments from being leaked or published over the internet without their prior knowledge and consent. At present it’s within the contract of people working for these departments not to disclose information from the state – but the ethical argument still stands with regards to ‘public interest’ information (in the case of Snowden for example). By creating a law that outlaws publication of information from anyone other than the publisher (unless a price is paid), the EU get to legally control all information flowing from all EU govs.

Well why use the media as a publishing platform for such laws? If they get the media on side (and which industry in its right mind wouldn’t jump at the chance for extra revenue?) then the media will do the donkey work for them – happily publishing positive reports on such laws, remaining silent on key issues and problems that arise and generally keeping the general population in the dark over the true nature of such laws.

The second point of course is EU states will get to tax all news as well! Any payments made by Google or any other publisher of news outside of the original source will have to pay a fee – that fee will be taxable and since news and information is the backbone of the internet thats quite a few tax dollars flowing into the coffers of Brussels and EU member states.

This should not be allowed on any level. It would be interesting to know if those that propose such laws have interests (first hand/second hand/third hand/remotely) invested within media corporations – and if so, they should not be allowed to take part in any discussions around this situation.

This is ridiculous.
Suppose they enforce this stupid law, how would someone attempt to prove my blog is infringing the copyright by adding a hyperlink?
They would link my culprit page when filing the case? That case is inadmissible as the delator is breaching the very same law mentioning my page.

I think the commission made amalgam between the first meaning of link (“Which imposes a permanent constraint”) and the term which have not this meaning in this case. An Internet link is “an internal content which contains a redirection to a external content” and by the way wich “link” these two contents but without constraint. Maybe this explanation can stop them ?

Please, please, keep fighting these regulations. Start telling the people involved that not only do we protest this attempt to stifle the free internet, but also, and by default, the next one, the one after that, and the one after that, and every next one until the Sun stops shining. Can you do that for us?

There is absolutely nothing vested interests hate more than the idea that people should be free to share ideas. They simply cannot stand it.

I think the best approach for businesses is to create a daughter company outside Europe and host outside Europe as well.

The alternative strategy is to use JavaScript to fetch the blurb from the target page and render it. Since the site didn’t do it, but it rather happened as part of viewing on the users computer the publisher didn’t break any laws since only a link and a location in the target page was published.

P.S. Defending Google as a target for charging fees is weak. They can fend for themselves. The issue is small companies risking lawsuits for summarising.